Everett v. Winn

1 S. & M. 67

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

At the January term, 1842, the counsel for the defendants urged the submission of this case as on final hearing, whilst the complainant asked for a continuance, and craved leave to file an amended bill, which was then offered. The suit was return-1 able to that term of the Court, and, according to a well-settled rule of practice, the complainant was entitled to have until the succeeding term to take testimony, as against the defendants who filed their answers to that term. The case then could not be properly submitted, except as to the two defendants who have demurred to the bill. I perceive no reason, whatever, for giving leáve to the complainants to file an amended bill. The application comes too late. It is not pretended that anything there stated was not well known to the complainant when he filed and swore to his original bill; nor is there anything stated in it which may not be made matter of proof under the original bill. Permission to amend sworn bills is granted with great caution, and especially after the coming in of the answer. In that state of the case, the complainant must show that the proposed amendment contains matter which is important to his rights, and which was unknown to him at the time of filing his original bill, or some other special reason, which will excuse him from negligence in the matter. Rogers v. Rogers, 1 Paige, Ch. 424 ; Whitmarsh v. Campbell, 2 Paige, Ch. 67. Leave to amend is therefore refused. In the present aspect of the case, nothing remains but to dispose of the demurrer of the defendants Meilke and Walker. Meilke having assigned and transferred his interest in the note and deed of trust to Genella, he has no longer any direct interest in the matter. No relief or discovery is prayed as against him, the demurrer therefore as to him, is sustained, and the bill dismissed to that extent. As to Walker, it is clear that in advertising to sell under the deed of trust, he acted as the mere agent of Genella, and if the complainant is entitled to relief against Genella, by reason of his alleged fraudulent combination with Winn, it is quite clear that he would be entitled to an injunction against Walker, who is a mere agent under the deed of trust, without interest in the controversy. Walker’s power under the deed depends essentially upon Genella’s right to enforce it. If it should appear, upon the final hearing, that the tax sale of the lot of land, and the purchase of the deed of trust, was the result of a scheme between Winn and Genella to overreach the interests of the complainant, I should think, as at present advised, that there could not be much doubt about the complainant’s right to relief. It seems that such an agreement, as that stated to have been made between the complainant and the defendant Winn, is such an one as the law will enforce, as between the parties. .(Orr et al. v. Pickett et al.,) 3 J. J. Marshall’s Rep. 276. Such an agreement would only be assailable, at the instance of creditors, who are thereby defrauded. The demurrer as to Walker must be overruled, with leave to answer in thirty days.

The case was, upon the delivery of this opinion, remanded to the hearing docket, and commissions opened to take depositions.

«#. Genella proved that J. Genella, the defendant, purchased the deed of trust in controversy, and lots at tax sales, with his own money, and for his own use. That A. M. Winn was utterly without means, and never furnished one cent of money to J. Genella, but was, on the contrary, considerably indebted to him. That he was present at the tax sales, and the complainant was also present, and made no objection to. the sale, and that when J. Genella purchased Meilke’s deed of trust, he did so after his tax purchases, at the request of complainant, who told defendant $709 was due Meilke, and said not one word of usury ; but, on the contrary, told him, if he would purchase that deed of trust, his title to the lot would be perfect.

E. N Scarborough proved that he sold the lot at tax sale regularly. That defendant Genella paid him the purchase-money, and he made him a deed. That Everett was present and assented to the sale. The witness also furnished, with his deposition, a copy of the advertisement and assessment of Winn’s property, and states that Winn had a negro boy in possession, when his real estate sold for taxes.

E. C. Meilke proved that he bought Everett’s note (and did not discount it) for §2000, from a Mr. Briggs.

E. W. Morris proved the payment of certain moneys from Everett, for the property in controversy with some other.

Watson Flowers proved that Winn had a negro boy in possession in 1837, and ever since.

David Steele proved that Briggs asked Meilke if he had got his money from Everett, and Meilke answered, not all, and Briggs said he was to have §40 out of it.

This was all the proof. The case was at the January term, 1843, again submitted for final hearing.

P. W. Tompkins, for complainants.

Guión and Smedes, for defendants.

The Chancellor, in his opinion already given in this case, says, “ The complainant is entitled to' relief against Genella, by reason of his alleged fraudulent combination with Winn.”

No such fraud or combination is proved. A great part of the depositions taken seems to be without object or point. It is in clear and full proof, that Genella purchased the deed of trust for §709 with Everett’s consent and statement that so much was due, and that both the deed of trust and tax moneys came from Genella himself, and for his own use ; and that Winn furnished nothing, and has no interest whatever in the property. It is also in proof, that Everett was present at the sale, and assented to it.

We cannot conceive upon what ground complainant will resist a decree dismissing the bill as to defendant Genella ; and as to Winn, the complainant is not entitled to a decree against him ; his remedy is at law.

From a portion of the depositions, we presume an attempt by argument will be made, to show that Genella acquired no title by the tax sales, because Winn had personal property, and because of irregular assessment.

In the present aspect of the case, neither proof nor argument to that point can be allowed.

The bill does not impeach the regularity of the tax sales, but only seeks to subject the property to Winn’s debt, by reason of Genella’s fraud (10th page of thé bill). For the defendant Genella, therefore, we do not offer either proof or argument, on the subject of the regularity of the sale.

We refer to our brief, heretofore filed in this cause, for an abstract and brief of the case, and upon the points presented by it.

The Chancellor delivered the following brief opinion. The right of the complainant to any relief as against the defendant Genella, rests entirely on the allegation of fraud in the several transactions detailed in the bill. The charge of fraud is fully denied by the answer of Genella, and the proof fails altogether to sustain it. There is no ground for equity jurisdiction laid by the bill as against Winn, except the charge of -fraudulent combination with Genella ; this is disproved. If Winn is indebted to the complainant • for money paid to his use, he has a clear remedy at law, and this defect is insisted upon by way of demurrer in the answer. Let the bill be dismissed at the complainant’s costs.